Aspen Times file
A fee levied by the U.S. Forest Service on people driving to the Maroon Lake area has survived the first round of a legal challenge by an Aspen man.
U.S. District Judge Raymond Moore signed an order March 5 that upheld the Aspen-Sopris Ranger District’s right to charge $10 per vehicle to visit the Maroon Bells Scenic Area.
Aspen resident Thomas Alpern filed a lawsuit in U.S. District Court in Denver in January 2017 challenging the Forest Service’s fee. The lawsuit contended that if Alpern isn’t using developed facilities or services at Maroon Lake, he shouldn’t be charged. Alpern occasionally drives into Maroon Valley in his private vehicle before the welcome station opens at 9 a.m., the lawsuit said. He parks at the East or West Maroon Wilderness Portal for a hiking or backpacking trip. Since he isn’t using a bathroom, picnic area, interpretative display or other amenities at Maroon Lake, he shouldn’t have to pay the fee, the lawsuit said.
The Forest Service charges the fee under the Federal Lands Recreation Enhancement Act. The fee can only be charged if specific criteria are met, such as designated, developed parking, a permanent toilet, a permanent trash receptacle, interpretative signs or exhibits, picnic tables and security services such as a ranger patrolling a parking lot.
The special fee raises funds that are retained by the Aspen-Sopris Ranger District for use operating and maintaining the facilities at Maroon Lake, a popular area that attracts tens of thousands of visitors every summer. The fee generated about $240,000 last year, according to the White River National Forest.
The judge ruled that it didn’t matter if a person such as Alpern doesn’t use the services offered.
“(E)ven though plaintiff states he does not use any of the amenities at the parking areas, he parks his vehicle in the developed parking areas and has access to the amenities provided,” Moore wrote. “(The federal law) lists amenities that the area must contain if a fee is to be charged — it does not require that a visitor use any of them to be charged the fee.”
Moore said forcing the Forest Service to monitor who is using services and who isn’t would be “unworkable.”
“Quite apart from the inherent difficulty of having Forest Service personnel monitor who used a toilet, dropped garbage in a trash receptacle or looked at a sign or exhibit, it is all but impossible to understand how personnel would determine how one visitor over another derived passive benefit from area security or from the fact that the parking lot was ‘developed.’”
Alpern’s attorney, Kristine Akland, filed a notice of appeal in the 10th Circuit Court on Thursday. The Recreation Enhancement Act forbids the Forest Service from charging a fee “solely for parking” or for general access to public lands, she said in an email.
“In the Maroon Valley, the only way to access the public lands from the Maroon Valley is to park at one of the three parking lots, which also happen to house all of the enumerated amenities, thus all users who solely wish to hike-backpack must pay a user fee,” she wrote.
She disputes the finding that it doesn’t matter if a person uses the services provided, they must pay the fee.
“One of the arguments we will be raising is that this ruling is contrary to established precedent in most of the West,” Akland said. “Because circuit courts are reluctant to create circuit splits on issues, we will be urging the 10th Circuit Court to follow precedent set by other circuits.”
A nonprofit organization called the Western Slope No-Fee Coalition is assisting Alpern in the case. The Durango-based organization has challenged numerous fees on public lands and successfully got them nullified or altered, including a Forest Service fee for driving up Mount Evans in Colorado’s Front Range.
Kitty Benzar, president of the coalition, said Alpern was aware of the group’s work and contacted her about challenging the Maroon Valley fee. The coalition helped him find Akland, who is working pro bono. The No-Fee Coalition is paying expenses related to the lawsuit, such as filing fees and monitoring the case.
Benzar said the ruling in this case goes against rulings in other court cases the group has pursued. She said the finding that it would be too difficult for the Forest Service to monitor who is using services and who isn’t misses the point.
“It may be difficult but it’s the law,” she said.
She stressed that Alpern is challenging the right for the Forest Service to charge the fee to motorists who park in the East and West Maroon Portal parking lots for hikes. Those folks don’t use the services offered at the main parking lot at Maroon Lake, so they shouldn’t be forced to pay the fee, she said. The fee to use the main lot isn’t being challenged, she said.
The fee remains in place while the final court outcome is pending.
The White River National Forest declined comment and referred questions to the U.S. Department of Justice. The DOJ’s office of public affairs declined comment without an explanation.
scondon@aspentimes.com